M/S GEM CONSTRUCTION,MUMBAI vs. ITO WARD 22(1)(5), MUMBAI

The facts relating to the case discussed in brief. The assessee is engaged in the construction business and the assessment was completed in his hands for the year under consideration u/s 143(3) r.w.s 147 of the Act by making various additions. The assessee challenged the assessment order by filing appeal before Ld CIT(A). Since the assessee did not respond to the notices issued by the first appellate authority, he dismissed the appeal in limine without deciding the issues on merits. Assessee is aggrieved.

At the outset, the learned counsel appearing for the assessee submitted that the learned CIT(A) has dismissed the appeal in limine, without deciding the issues urged before him on merits on the reasoning that the assessee did not respond to the notices issued by him. The Learned AR submitted that no physical notice was issued to him. All the notices were posted in the income tax portal and the assessee was not aware of those notices. Accordingly he prayed that, in the interest of natural justice, all the issues may be restored to the file of the learned CIT(A) for adjudicating them on merits.

We heard learned DR and perused the record. We noticed that the learned CIT(A) was constrained to dismiss the appeal in limine, since the assessee did not respond to the notices issued by him. It is the submission of learned AR that the notices were issued in the income tax portal and hence the assessee was not aware about them. Accordingly, it was submitted that the assessee could not comply to the notices issued by the learned CIT(A).

In our view, the Ld CIT(A) could have decided the issues on merits on the basis of material available on record. In any case, in the absence of proper hearing given to the assessee, there is violation of principles of natural justice. Accordingly, we are of the view that, in the interest of natural justice, the assessee may be provided with one more opportunity to present his case properly before the learned CIT(A).

Accordingly we set aside the order passed by the learned CIT(A) and restore all the issues to his file for adjudicating them on merits, after affording adequate opportunity of being heard to the assessee. We also direct the assessee to be vigilant and fully cooperate with the learned CIT(A) for expeditious disposal of the appeal.

In the result, the appeal filed by assessee is treated as allowed for statistical purposes.